Parliamentary Sovereignty

Sovereignty is a key concept in all constitutions; it defines the location of supreme constitutional power. Constitutions define the duties, powers and functions of the various institutions of government, whilst the sovereign body, or any body that shares sovereignty, has the ability to shape the constitution itself. In this way, it defines the powers of subordinate bodies. In the United Kingdom, sovereignty is located in parliament, or technically in the ‘Crown in Parliament’. Parliamentary sovereignty is strictly a form of legal sovereignty; it means that parliament has the ability to make, amend or dissolve and law it wishes. Parliamentary sovereignty is, without a doubt, the most important principle in the constitution of the United Kingdom. As J. S. Mill (1806-73) described it, ‘Parliament can do anything except turn a man into a woman’.


Where does the sovereignty come from?
The prime political leader to solve this problem was Thomas Hobbes. His book is called Leviathan, in which he compared the state to Leviathan. “In Leviathan, Hobbes set out his doctrine of the foundation of states and legitimate governments - based on social contract theories. Leviathan was written during the English Civil War; much of the book is occupied with demonstrating the necessity of a strong central authority to avoid the evil of discord and civil war. Beginning from a mechanistic understanding of human beings and the passions, Hobbes postulates what life would be like without government, a condition which he calls the state of nature. In that state, each person would have a right, or license, to everything in the world. This inevitably leads to conflict, a "war of all against all" (bellum omnium contra omnes), and thus lives that are "solitary, poor, nasty, brutish, and short".”1 To escape this state of war, men in the state of nature accede to a social contract and establish a civil society. “According to Hobbes, society is a population beneath a sovereign authority, to whom all individuals in that society cede their natural rights for the sake of protection. Any abuses of power by this authority are to be accepted as the price of peace. However, he also states that in severe cases of abuse, rebellion is expected. In particular, the doctrine of separation of powers is rejected: the sovereign must control civil, military, judicial and ecclesiastical powers.”2

Hobbes is the first great political thinker who doubts that a human is a priori designed to live in a political order, society, that the human is a political creature. Ergo the state is a built, artificial and an unnatural way of living, but the only one that enables humans to leave peacefully.

Each state is based on ratio, because this is the only way of retaining our life. State is a necessary, but not always a sufficient means to curb social war. According to Hobbes states in the medieval world have failed, because they did not manage to prevent their own death; the death of their political order. Then what is a good state? - Hobbes’s answer: sovereign states; states that are not bound by religion or old privileges. Why? How? Because human beings are not designed to live together, because state is only necessary for installing peace; people bring about the state – Leviathan – in which one person has the sovereignty.

The origin of sovereignty, as viewed by Hobbes, is democratic – this is a political order, in which every citizen gives up his or her natural rights and chooses state instead. So the king brings about our rights to decide, because we have transferred to him our rights to decide. Even if a citizen disagrees, he still has to comply with his sovereign’s decisions – this is in essence the social contract. The state decides on right and wrong and because the origin of the state is democratic, it exists only as long as its citizens want it. However, the alternative is worse – a war and death. Hobbes believes that it is either civil war, or strong order.

Hobbes’s beliefs might sound totalitarian. However, Hobbes also states that there is no such thing like objective truth, ultimate veritas. We cannot know whether state is a good thing or not, because truth does not exist. Only the sovereign decides what is true. The sovereign cannot force us to believe, but can command us to comply with his orders. Hobbes introduces the difference between faith and confession. Faith is individual and unenforceable, while confession is enforceable. So he introduces the first human right, the first universal human freedom – the freedom of conscience. The state cannot rule our conscience, only our actions; it can bind us to a confession, not to a faith. As a result, faith becomes neutral. It is Christianity, not Catholicism or Protestantism. Before Hobbes, laws were holy, as they were Christian, there were no contradictions: Obey the state, obey the religion. After Hobbes the binding force of the law comes not from Veritas Christiania, but from Auctoritas. This is the logical and conceptual basis of positive law. Hobbes neutralizes the state and gives foundation for the possibility of the separation of the law and the state from the religion and faith. He makes clear that state is not natural, but cultural a human invention to protect people from war and extermination. He says that state is a mortal god. He is also the first thinker to distinguish between public and private space – a person is in one and the same time a citizen and individual. Jean Bodin is the first one to distinguish between public and private law.

Hobbes’s ideas give basis for the next idea, namely that sovereignty does not only originate from people, the people are the sovereign. This is the idea on which the American and the French constitutions are based on. This principle is legalized in the idea of written Constitution that originates from the people.

Examples:
USA’s Constitution, the first Constitution ever written, states: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” This is a legal fiction – of course not everybody signed the Constitution! It simply shows that the sovereignty comes from the people. Although a small part of the USA citizens could actually vote, still it was true from a legal point of view that people were sovereign, because their representatives acted on their behalf.


Sources:
Infidels.org
Leviathan
OregonState.edu
SparkNotes
Wikipedia

Posted in: LLB Degree